State v. Hayes

• Court: Missouri Supreme Court
• Writing for the Court: WHITE, J.
• Citation: State v. Hayes, 262 S.W. 1034 (Mo. 1924)
• Decision Date: 05 June 1924
• Docket Number: 25310
• Parties: STATE v. HAYES

262 S.W. 1034

STATE v. HAYES

No. 25310

Supreme Court of Missouri, Second Division

June 5, 1924

A. S Ennis, of Festus, and James Booth, of Pacific, for appellant.

Jesse W. Barrett, Atty. Gen., and Wm. L. Vandeventer, Sp. Asst Atty. Gen., for the State.

All concur; WALKER, J., in result.

OPINION

WHITE J.

Appeal is from judgment upon conviction of murder in the first degree, with punishment assessed at death.

Eugene Hayes, defendant, was charged jointly with James Seward Ernest Hayes. William Hayes, Jesse Thomas, Otto Thomas, and Elvie Thomas, with the murder of Andrew Deck, February 26, 1921, at Herculaneum, in Jefferson county, Mo. It was charged that James Seward was hired by the other defendants to do the murder. Eugene Hayes was granted a severance. On a former trial he was found guilty. The judgment was reversed by this court, and the cause remanded. 247 S.W. 165. Seward also was convicted and appealed to this court; the judgment in his case was affirmed. 247 S.W. 150. In the reports of these two cases the facts are fully set out. The evidence shows that Eugene Hayes lived in St. Louis and was visiting his family in Herculaneum at the time of the alleged murder. Andrew Deck, living in Herculaneum, had applied for the position of prohibition officer. Previously he had caused trouble for Jesse Thomas with the authorities on account of alleged violation of the prohibition law. The evidence for the state shows that the defendants, with the exception of Seward and Elvie Thomas, decided to hire someone to 'beat up' Deck. It was agreed they would contribute $ 35 for the purpose. The appellant undertook to raise the money and to hire a man for the job. He visited Seward at his home in St. Louis and negotiated the deal whereby Seward was to go to Herculaneum and 'beat up' Deck. Eugene Hayes furnished a revolver, paid Seward $ 20, and after the homicide was instrumental in getting Seward back to St. Louis. Seward, as is more fully shown in the other reported cases, went to Deck's house, enticed him out of doors, and in an altercation which ensued shot Deck, who died from the wound two days later.

Two confessions signed by Eugene Hayes and two confessions signed by Seward while in custody in St. Louis were introduced in evidence. These, on a former hearing of this case, were held admissible, that of Seward on the ground that it was made in the presence of Hayes and acquiesced in by him. As to Elvie Thomas, who was indicted with the others the case was dismissed. He was reindicted as accessory after the fact and appeared as a witness for the state. Questions relating to the admissibility of his evidence were settled on a former appeal.

I. The first error assigned and argued at length by the appellant relates to the voir dire examination of jurors. One juror was asked:

'If you thought he was guilty of murder in the first degree, would you assess his punishment the same as though he were the one who actually fired the fatal shot? A. Yes, sir.'

That juror was challenged and accepted; objection of defendant and exception saved.

After a juror qualified as to the death penalty, this question was asked:

'Q. Would you make any difference between one who did the killing and the one who hired that one to do the killing? A. No, sir; I don't think I would.

'Q. It would make no difference to you as to the proper punishment? A. No, sir.'

Another juror, after qualifying as to the death penalty, was asked:

'Q. You would agree to that verdict if in your honest opinion it was justified? A. Yes, sir.

'Q. You would make no difference between the one who actually did the killing and the one who hired him to do it, either as to the punishment or as to the guilt? A. No, sir.'

Then the question was repeated:

'Q. Either as to his guilt or as to the proper punishment to be assessed? A. No, sir.

'Q. What other jurors have done in other cases would not affect your verdict in this case? A. No, sir; none whatever.

'Q. Either as to the guilt or as to the proper punishment? A. No, sir.'

Those jurors were challenged on the ground that they expressed an opinion as to how they would exercise their discretion, and had determined in advance what the punishment would be. The objection was overruled and exception saved.

Other members of the panel who said they would make a distinction as to punishment between the one who committed the murder and the one who hired it done were excused, and defendant excepted.

A number of the panel were examined and these or similar questions were asked. No juror was accepted unless he unqualifiedly stated he would be governed by the instructions of the court, and would try the case fairly and impartially, and render a verdict as instructed upon the evidence. They were asked if they would make any difference as to punishment between one who hired the murder committed and the one who actually committed it, and none were accepted who said they would make a difference in that respect.

II. It is a rule that a juror who has scruples against fixing the death penalty in case of murder in the first degree should not be allowed to serve. State v. Sherman, 264 Mo. loc. cit. 380, 175 S.W. 73; State v. Wooley, 215 Mo. loc. cit. 673, 674, 115 S.W. 417. In commenting upon section 3687, R. S. 1919 (State v. Fredericks & Reed, 85 Mo. loc. cit. 150, 151), it was held that the statute 'leaves no distinction between the principal in the first degree and an accessory before the fact, except in name.' That section requires that an accessory before the fact 'shall upon conviction be * * * adjudged guilty in the same degree * * * and may be punished in the same manner as the principal in the first degree.' Obviously a juror is not qualified if beforehand he has determined to make a difference in the degree of guilt between the accessory before the fact and the principal in the murderous act; but he is not required to assess the death penalty upon the accessory because he thinks the principal murderer inherits that punishment; he is required only to have no prejudice against assessing it because the defendant hired the deed to be done instead of doing it himself. Those questions are susceptible of interpretation that the jury must assess the same punishment upon the accessory as they would assess against the principal, regardless of what they might think of the relative culpability of the two. A difference in punishment would depend, not upon whether one was accessory before the fact and the other principal in the deed, but whether the facts showed the same degree of guilt. Instead of asking the jurors whether they would make a distinction as to punishment between the one who did the deed and the one who hired it done, they should have been asked to say that they would not refuse to inflict the death penalty because the defendant hired the murder committed instead of committing it himself. It was improper to associate the two so as to invite a comparison and require a like treatment of them. A juror might very well find something in the circumstances which would justify him in inflicting a lighter punishment upon one of several perpetrators of a crime like this than upon the other, and he should be perfectly free to make such distinction if he found the facts warranted it; the questions seeking to qualify the juror should be such as to leave him free in that respect. We would be reluctant to reverse the case on account of that method of qualifying the jury, but the case is to be retried for another reason, and on another hearing the trial court will cause the qualifying questions to be framed so as to avoid the objection mentioned.

III. After the jury was selected the defendant filed a motion to quash the panel and discharge the jurors. By order of court the sheriff of Jefferson county was disqualified and the coroner of the county appointed to serve in the place of the sheriff. It is claimed the venire was not served by the coroner nor by any one having authority. It was in fact served by Henry W. Harris and Arthur Houston, who acted as deputy coroners. George W. Elders, the coroner, took the oath of office and appointed Harris and Houston as deputies; the deputies took the oath of office and were ordered to summon the panel.

Section 11649, R. S. 1919, authorizes a coroner to appoint deputies only in case the office of sheriff shall be vacant, while section 11648 authorizes the coroner to serve writs when the sheriff is disqualified to act. The sheriff's office was not vacant, because the sheriff was performing the duties of his office; he was only disqualified to summon the jury in this case. Therefore the literal meaning of the statute would indicate that the deputy coroners had no authority to summon the jury. This court has held, however, that the statute relating to the summoning of juries is directory merely, and disregard of it will not be ground for new trial, in the absence of circumstances from which it can be inferred some prejudice resulted to the defendant by reason of the summoning of the jurors in that manner. State v. Riddle, 179 Mo. 287, loc. cit. 294, 78 S.W. 606, and cases there cited.

It is not claimed that the deputies did not act fairly and impartially, nor that the defendant was in fact prejudiced by that method of summoning the jury. It is claimed only that the defendant was prejudiced because the method was illegal. We cannot find that the defendant in fact suffered any disadvantage. Under the rulings mentioned this point is resolved against the appellant.

IV. Strenuous objection is made to instruction No. 5, in which the court told the jury that, if they believed the defendant voluntarily made statements after the alleged offense was committed, they should consider such statements all...